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HomeMy WebLinkAbout09. Rescind current agreement with Kenton L. Alm, Esq. and authorize a new legal services agreement effective October 20, 2022 Page 1 of 7 Item 9. CENTRAL SAN BOARD OF DIRECTORS POSITION PAPER MEETING DATE: OCTOBER 20, 2022 SUBJECT: RESCIND THE CURRENT PROFESSIONAL SERVICES AGREEMENT WITH KENTON L. ALM, ESQ., FOR COUNSEL FOR THE DISTRICT SERVICES AND AUTHORIZE A NEW PROFESSIONAL SERVICES AGREEMENT, EFFECTIVE OCTOBER 20, 2022 THROUGH DECEMBER 31, 2023 SUBMITTED BY: INITIATING DEPARTMENT: TEJI O-MALLEY, HUMAN RESOURCES AND OFFICE OF THE GENERAL MANAGER - ORGANIZATIONAL DEVELOPMENT HUMAN RESOURCES MANAGER Roger S. Bailey General Manager ISSUE The Board of Directors has the authority to execute a professional services agreement with Kenton L. Alm, Esq., for Counsel for the District services effective October 20, 2022 through December 31, 2023. BACKGROUND The District has been receiving general legal services and Counsel for the District services from Kenton L. Alm, Esq., since 1986. From 2002 to 2019, Mr. Alm served the District as a principal in the firm of Meyers Nave. As of January 2019, Mr. Alm retired from Meyers Nave, at which point he was contracted directly by the District to act as Counsel for the District. This was in addition to a separate contract for Meyers Nave to provide backup Counsel for the District services, provide assistance to Mr. Alm, and provide specialty legal services on an as-needed basis. The District is proceeding with a Request for Proposal (RFP)for legal services as Mr. Alm has announced his retirement The District desires to continue engaging the services of Mr. Alm as Counsel for the District until which time we can complete the RFP process as well as allow for some overlap to ensure a seamless transfer between his retirement and the new Counsel for the District. October 20, 2022 Regular Board Meeting Agenda Packet- Page 50 of 143 Page 2 of 7 Due to Mr. Alm's outstanding annual performance appraisal and the cost of living adjustment (COLA) of 5.0 percent that was granted to all District employees in April of this year, staff is also proposing a 7.5 percent adjustment to his hourly rates. To do so, the Board must rescind the current agreement with Mr. Alm and execute a new proposed Professional Services Agreement (Attachment 1), including a proposed rate adjustment of 7.5 percent (Attachment 2), which will be effective October 20, 2022 to December 31, 2023. ALTERNATIVES/CONSIDERATIONS The Board could elect not to enter into the contract. This is not recommended at this time as Mr. Alm has extensive experience and historical knowledge working with the District, and his services will be needed as the District proceeds with the recruitment for his replacement. FINANCIAL IMPACTS Per the proposed rate sheet (Attachment 2), Mr. Alm's proposed hourly rate for retainer services (76 hours)will increase from $240 to $258, and the hourly rate for additional services will increase from $245 to $263. COMMITTEE RECOMMENDATION The Administration Committee reviewed this matter on October 4, 2022, and recommended approval. RECOMMENDED BOARD ACTION Rescind the current professional services agreement with Kenton L. Alm, Esq., for Counsel for the District services and execute a new professional services agreement, effective October 20, 2022 through December 31, 2023. Strategic Plan re-In GOAL TWO: Environmental Stewardship Strategy 1 -Achieve compliance in all regulations ATTACHMENTS: 1. Proposed Letter of Engagement 2. Proposed Rates October 20, 2022 Regular Board Meeting Agenda Packet- Page 51 of 143 Page 3 of 7 26 Hillcroft Way Kenton L.Alm Walnut Creek,California 94597 Attorney at Law (510) 375-4571 Attachment 1 October 20, 2022 Honorable Board of Directors Central Contra Costa Sanitary District 5019 Imhoff Place Martinez, California 94553 Re: Modified Engagement of Legal Services Dear Honorable Board of Directors: Thank you for your confidence in continuing to retain me, Kenton L. Alm, as your District Counsel. I will continue to practice through much of 2023 as sole practitioner as the law offices of Kenton L. Alm, ("Counsel") to perform general counsel legal services for Central Contra Costa Sanitary District (Central San or District). I have had the pleasure of providing similar services for many years and appreciate the opportunity of continuing to work with you under this new contract. This Engagement Letter of Legal Services (the "Agreement") sets forth the agreement concerning the legal services to be provided, conflict disclosure and waiver, and fee arrangements for those services. 1. Scope of Engagement. Counsel will provide legal services reasonably required to represent the District as its general counsel (District Counsel). Certain ordinary and reoccurring services as set forth under Retainer Services in Exhibit A will be provided as set forth thereon. Additional legal services not falling within the scope of Retainer Services, or services for specific legal projects requiring substantial hours in excess of the retainer services set forth in Exhibit A, shall be provided if requested by the District and billed separately at the hourly rates also set forth In Exhibit A. If this type of additional work is requested, a Supplemental Letter of Legal Services confirming this additional work and associated terms shall bring it within the scope of this Agreement. 2. Fees and Personnel. As compensation for services, fees will be based on the billing rates set forth in Exhibit A. The agreed-upon changes set forth in Exhibit A shall be effective upon the date of this agreement. Counsel will be in charge of the provision of outside legal services which may be provided for the District, with the exception of Labor and Employment matters. For so long as the District continues to contract with the Meyers Nave law firm, Counsel will rely on that firm to provide back-up for services Counsel may not be able to provide due to vacations or other unavailability, or for services which may more appropriately be provided by a Meyers Nave firm member with appropriate skills. If it is felt that other attorneys and/or paralegals should be assigned to work on District matters, then Counsel will be primarily responsible for directing their work. The general terms of Meyers Nave's engagement and its compensation shall be subject to a separate agreement between the District and Meyers Nave. October 20, 2022 Regular Board Meeting Agenda Packet- Page 52 of 143 Page 4 of 7 Central Contra Costa Sanitary District Modified Engagement of Legal Services October 20, 2022 Page 2 3. Authorized Representative. By signing below, the District's President of the Board of Directors represent that he is authorized to execute this Agreement and otherwise make decisions on the District's behalf. 4. Disbursements and Expenses. In addition to hourly fees, Counsel may incur out-of- pocket expenses related to the District's representation. Counsel will be reimbursed for certain outside services incurred in the course of providing legal services to the District. Outside services will include, but are not limited to, all third-party expenses, delivery charges, travel expenses, or outside research services. Specific arrangements will be agreed to for reimbursement in the event it becomes appropriate for Counsel to hire consultants or experts on behalf of the District. 5. Participation in California Association of Sanitation Agencies (CASA). The District agrees that it is in its best interest for Counsel to continue to participate in CASA activities, and when possible and necessary to attend various meetings and conferences. The District will pay for or reimburse Counsel for reasonable travel expenses associated with such activities. 6. Billing and Payment Responsibilities. Counsel will send monthly statements which are due within thirty (30) days of receipt. If the District has any questions about an invoice, it is requested to promptly contact Counsel so that the matters may be discussed. 7. Termination of Services. The District may terminate Counsel's services at any time by sixty (60) days written notice. After receiving such notice, Counsel will cease providing services in accordance with that notice. Termination of Counsel services by the District will not relieve the obligation to pay for services rendered and costs incurred before Counsel's services formally ceased. Counsel has determined that he will enter into a fuller retirement status during the spring of 2023. If District Counsel is unable to provide adequate legal services prior to that date due to health concerns or currently unknown circumstances, he will provide the maximum notice practical. Counsel will cooperate fully with the District to facilitate the District's preferences in the process of selection of new counsel. 8. Insurance. During the term of this engagement, Counsel shall take out and maintain general liability, auto and professional errors and omissions insurance, in amounts acceptable to the District. 9. Guarantee of Outcome. Any comments made by Counsel about the potential outcome of this matter are expressions of opinion only and are not guarantees or promises about any outcome or results. 10. Dispute Resolution. In the event the District becomes dissatisfied with any aspect of the relationship, Counsel encourages the District to bring such concerns to his attention immediately. If the dispute is unable to be resolved, either arising out of or in connection with this Agreement or relating to the services performed by Counsel, to Counsel and the District's mutual satisfaction, Counsel will first comply with any mandatory Bar Association dispute resolution procedures that may apply to any such dispute. October 20, 2022 Regular Board Meeting Agenda Packet- Page 53 of 143 Page 5 of 7 Central Contra Costa Sanitary District Modified Engagement of Legal Services October 20, 2022 Page 3 11. Entire Agreement, Full Understanding; Modifications in Writing. This Agreement contains the entire agreement about Counsel's representation. Modifications or additions to this Agreement must be made in writing. 12. Conflicts/Waivers. Counsel is not aware of any potential conflicts regarding continued representation of the District. If any conflict were to arise, Counsel will promptly notify the District and follow the Rules of Professional Conduct for lawyers. If this Engagement Letter of Legal Services is consistent with your understanding of our respective responsibilities, please so indicate by returning a signed copy of this letter to me at your earliest convenience. Very truly yours, Kenton L. Alm Attorney at Law These terms are accepted and agreed to as of October 20, 2022: Central Contra Costa Sanitary District By: David Williams President of the Board of Directors October 20, 2022 Regular Board Meeting Agenda Packet- Page 54 of 143 Page 6 of 7 Attachment 2 EXHIBIT A KENTON L. ALM, ESQ. RATE SHEET RATES Effective October 20, 2022 November 2021 $258 48/hour- 76 hours Kenton L. Alm - Retainer $19,608 8- ,249/month Kenton L. Alm -Additional Services $263 45/hour Legal Assistance Actual rate to be reviewed by Central San (Subconsultant to K. Alm) prior to usage It is understood that Mr. Alm shall provide services as noted below as a sole proprietor, and back up will be provided by Meyers Nave, provided the District continues to maintain a separate engagement letter with them. For any extended periods when Mr. Alm is not available to provide Counsel for the District services, Meyers Nave will be requested to provide those services. In any month where Mr. Alm is not available for a period of more than a full week, the retainer amount due Mr. Alm will be proportionately reduced to reflect that absence. Mr. Alm may make arrangements with the General Manager to provide legal services remotely without on-site office hours for periods where COVID restrictions or other events deem that appropriate without incurring a proportionate reduction in the monthly retainer. Travel and Conference expenses shall be directly reimbursed per Central San's Administrative Procedure AP 008 - Travel Expense Reimbursement Procedure and are subject to advance approval by the General Manager. RETAINER SERVICES Retainer services for the purposes of this contract are defined as those certain Counsel for the District services that would ordinarily be required on a regular basis and which are anticipated to be performed within the seventy-six (76) hours per month of retainer time. The retainer specifically includes the following: a. Attendance at Central Contra Costa Sanitary District Board meetings, Agenda Review meetings, Board Committee meetings as requested, and California Association of Sanitation Agencies Legislative meetings; b. Legislative review for California Association of Sanitation Agencies Legislative Committee and ordinary Counsel for the District services in support of wastewater related industry matters; c. All telephone calls, except calls on special legal assignments for which there is an authorization to bill separately; October 20, 2022 Regular Board Meeting Agenda Packet- Page 55 of 143 Page 7 of 7 Kenton L. Alm Rate Sheet Effective October 20, 2022 Page 2 d. Receipt and review of all correspondence, documents, faxes, and e-mails received or reviewed remotely, except on separately billed legal matters; e. Preparation and presentation of advice to the Board and Board Members (including customary ancillary activities related to representing the Board); f. Provision of a minimum of two (2) half-days of onsite office hours per week, or the equivalent, with the days and hours to be adjusted as needed to accommodate staff, Directors, and Counsel for the District; g. Management of outside counsel litigation services including providing coordination among Counsel for the District, staff, Board of Directors, and outside litigation counsel; h. Manage and coordinate any services to be provided by Meyers Nave; i. Provision of other routine and typical Counsel for the District legal services; and j. Review of contracts for compliance with Central San's requirements and relevant legal requirements. This will focus primarily on: 1. Capital Improvement Projects; 2. Contracts originating from Purchasing; and 3. Contracts for services provided by consultants/vendors, including contracts authorized by Board actions. October 20, 2022 Regular Board Meeting Agenda Packet- Page 56 of 143